Ajab Kishore v. Lal Satya Narayan Nath Shahdeo — 1996 DIGILAW 260 (PAT)

Judgment Loknath Prasad, J. 1. This appeal, after obtaining special leave, is directed against the order of acquittal dated 17-12-1990 passed by Sri P. H. Lal Judicial Magistrate, 1st class, Ranchi in Complaint Case No. 60/87, through which complaint case bearing No. 60/87 preferred by the appellant was dismissed and the accused was acquitted of the charges. 2. The fact, in short, giving rise to this appeal is that the appellant instituted a complaint case as against opposite party, Lal Satya Narain Nath Shahdeo alleging therein that the accused approached the complainant that he is the absolute owner of M. S. Plot No. 973 corresponding to R. S. Plot No. 1226 of village Hatma measuring about 95 decimals and he wanted to sell the said property. The complainant then entered into an agreement with the accused that he along with his partner Mohd. Hanif will purchase the satire land mentioned above for a sum of Rs. 2 lakhs and fifty thousand was paid in cash on 11-10-1984 to the accused and an agreement for sale was executed on 11-10-1984. After that the complainant East CrC 1996 (2)100 orally requested the accused to execute the sale deed, but he put off the matter and also did not refund the earnest money. Furthermore, on enquiry it was found that the accused had no such land and his title was defective and on the lands agreed to be sold to the complainant, a building was found which belonged to the Public Works Department (in short to be referred to as P W.D.) and thus it has been alleged that on the basis of forged document the complainant was induced and made to believe about the title of the land and, thus, the complainant and his partner were created to the tune of Rs. 50,000. In the complaint case, cognizance of the offence was taken and charge under Section 420, IPC was framed against the accused who is opposite party here. 50,000. In the complaint case, cognizance of the offence was taken and charge under Section 420, IPC was framed against the accused who is opposite party here. The accused claimed himself innocent and it was his defence fhat actually he got perfect tide over the land to which he agreed to sell to the complainant, but the complainant himself was not willing to get the sale deed executed within the stipulated period and expresed his unwillingness to purchase the land and as such according to the agreement, the earnest money, automatically stood forfeited and this complaint case had been falsely instituted to apply pressure tactics for refund of the earnest money. The trial court after trial came to the conclusion vide judgment dated 17-12-1990 that there was valid title over the land in question and it is the complainant who was negligent and had deliberately not get the sale deed executed and, thus, no case of cheating is made out and accordingly recorded the order the order of acquittal. 3. Now the only question for consideration is if there is evidence to prove the complicity of the accused and to justify his conviction under Section 420, IPC as alleged. 4. It is more or less admitted position that the accused, that is, opposite party here, claimed to be the owner of M. S. Plot No.973 of village Hatma measuring 95 decimals and admittedly an agreement of sale was executed by the complainant on 11-10-1^84 i.e. Ext. 1 and it was agreed that on payment of balance consideration amount by the complainant, the accused will execute the rale deed either in favour of the complainant or his nominee. 5. From the evidence of PW 1 who is the complainant himself and that of PWs. 2, 3 and 4, this fact is well proved that there was agreement between the parties and the accused agreed to sell the R. S. Plot No. 1226 of village Hatma for Rs. 2 lakhs to the complainant and his partner and Rs. 50,000 was paid as earnest money. 6. Now the main question for consideration is if the accused in violation of the term and condition and not executed the sale deed and further he had got no title over the land in question and, thus falsely induced the complainant and had cheated to the tune of Rs. 50,000. 7. 50,000 was paid as earnest money. 6. Now the main question for consideration is if the accused in violation of the term and condition and not executed the sale deed and further he had got no title over the land in question and, thus falsely induced the complainant and had cheated to the tune of Rs. 50,000. 7. No doubt, PW 1 the complainant and PWs 3 and 4 had claimed that so far R. S. Plot No. 1226 is concerned, the title is claimed by the accused was defefective and it does not belong to the accused ; rather it was belonging to the P.W.D. But from the cross-examination of PW 1, the complainant, it can be said that at the time of talk and when the agreement was being executed (Ext. 1) in presence of the lawyer and the witnesses, the accused had shown all the documents of title which and the witnesses had been and further the accused had also shown the land and at that time the land was vacant land. If that is so, the complainant and his witnesses had been the entire document of the accused and also the land to be purchased by him and when being satisfied got the agreement executed that sale deed will be executed and paid part of the consideration amount. Moreover, at the time of execution of the agreement for sale, the land was vacant acording to the complainant and the witnesses. If that is so, the entire allegation that the complainant was cheated and the title was defective and on the land in question there is a building of the P. W. D. appears to be doubtful. Moreover, in Ext. 1 itself there is a recital that the complainant was given the possession of the land which was the subject-matter of sale. If that is so the complainant also, according to the agreement deed, came in possession of the land. 8. Above all, from the cross-examination of the complainant, it can be said that the complainant had himself admitted that he had not verified about the title and ownership of the accused either in the circle office or in the Municipality. If that is so, the evidence of the complainant that the accused had no valid title is only his guess work. 9. If that is so, the evidence of the complainant that the accused had no valid title is only his guess work. 9. No doubt on behalf of the accused, certified copy of the Khewat showing Khata No. 111 was recorded in the name of Manmohan Pandey but from this document, it cannot be said that it relates to R. S. Plot No. 1226 having an area of 95 decimals. Moreover, it is the case of the complainant that the disputed land actually belonged to P. W. D. and to Manmohan Pandey. On the other hand, from the documents filed by the accused it can be said that the grandfather of the accused Jagat Mohan Nath Shahdeo was the khewatdar and he granted a hukumnama on 18-1-1988 in respect of R. S. Plot No. 1226 of village Hatma in fravour of the accused. Moreover the discussions made above, it is clear that it is the admission of the complainant himself that he verified the title deed of the accused and when satisfied, got the deed of agreement to sell executed and further in Ext. 1 there is recital that the land was Prati and possession was delivered to the complainant. 10. Considering all these facts, the trial court was perfectly justified in coming to the conclusion that the complainant utterly failed to prove that the accused had no valid title over the land covered by the agreement deed. 11. So far payment of earnest money of Rs. 50,000 is concerned, admittedly from Ext. 1 it can be said that Rs. 50,000 was paid on 11-10-1984 to the accused, but in Ext. 1 there is clear stipulation that the complainant had to take step for execution of the sale deed in his favour or his nominee on payment of balance consideration amount, that too, within one year from the date of execution of the agreement that is from 11-10-1984 failing which the earnest money of Rs. 1 there is clear stipulation that the complainant had to take step for execution of the sale deed in his favour or his nominee on payment of balance consideration amount, that too, within one year from the date of execution of the agreement that is from 11-10-1984 failing which the earnest money of Rs. 50,000 paid to the accused will be forfeited due to breach of the contract and admittedly from the evidence of the complainant, it can be said that he had neither sent any notice to the accused requesting him to execute the sale deed and further even no notice was sent that he had a defective title over the land in question on the other hand from the evidence of the complainant, it can be said that he was silent over the matter for some years and then all on a sudden come with a plea that the lands covered by the agreement actually bslonged to PWD. Moreover the complainant also filed a money suit for recovery of the earnest money as is evident from Ext. 4 but that was dismissed for nonpayment of court-fee and money suit was filed as late as in the year 1987. 12. Thus from the evidence on the record, this much is well proved that though the deed of agreement to sell was executed on 1-10-1984, the complainant had not taken any step nor he was willing to purchase the land within one year as stipulated in the agreement deed and in that view of the matter according to the agreement, the earnest amount stands forfeited in favour of the accused and in that situation it cannot be said that the accused cheated the complainant by taking earnest money because it appears that he was willing to purchase the land one year as stipulated in the agreement deed and in that view of the matter, according to tho agreement, the earnest amount stands forfeited in favour of the accused and in that situation it cannot be said that the accused cheated the complainant by taking earnest money because it appears that the accused was willing to perform his part of the contract. 13. 13. So after careful consideration of the entire evidence of the case, there is no two opinion that no case under Section 420, IPC is made out as against the accused, that is opposite party here and as such learned Judicial Magistrate was perfectly justified in dismissing the Complainant Case No. 60/87 and recording an order of acquittal date 17-12-1990 and as such there is not merit in this appeal and, thus, it is dismissed.